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2012 DIGILAW 623 (HP)

Roshan Lal Bhardwaj v. State of Himachal Pradesh

2012-09-24

DHARAM CHAND CHAUDHARY, KURIAN JOSEPH

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JUDGMENT Dharam Chand Chaudhary, Judge. By means of the present writ petition, the petitioner has claimed the following reliefs: (i) That the act of omission and commission on the part of respondent No. 2 for not providing the sewerage facility to the petitioner in view of the protest raised by respondent no. 5, who is not allowing the passage of sewerage line of the house of the petitioner through his land to its further linkage to the main sewerage line of the respondent No. 2, may kindly be set-aside and quashed and respondent No. 2 may be directed to invoke its power under Section 137 of H.P. Municipal Act, 1994 towards laying of drainage or sewere through the land of respondent No. 5 with its link to the main sewerage line constructed by the respondent No. 4 the executing agency of respondent No. 2, immediately below to the house of respondent No. 5. (ii) That the respondent No. 5 may also be directed to allow the joining of sewerage line of the house of the petitioner through his land with its linkage to the main sewerage line of the Municipal Council for the disposal of the drainage/sewer of the house of the petitioner.” 2. Complaint is that the 5th respondent did not allow the petitioner to lay sewerage line from his house up to the main sewerage line laid by the 2nd respondent through the executing agency i.e., the Department of Irrigation and Public Health, the 4th respondent and that the 2nd respondent has failed to exercise the powers vested in it under Section 137 of the H.P. Municipal Act, 1994 in the matter of laying sewerage pipe line by the petitioner through the land of the 5th respondent. 3. The petitioner has constructed a house over the land entered in Khasra No. 389/2 measuring 1485 sq. meters, Khasra No. 390 measuring 1135 sq. meters situated in Mohal Sundernagar, Hadbast No. 26/8 , District Mandi, H.P., in the year 2009. In the photograph Annexure P-25, the 1st storey of the house of the petitioner is complete, whereas, the 2nd is still under construction. Below to it is he house of the 5th respondent. The main sewerage line is also visible in this photograph. meters situated in Mohal Sundernagar, Hadbast No. 26/8 , District Mandi, H.P., in the year 2009. In the photograph Annexure P-25, the 1st storey of the house of the petitioner is complete, whereas, the 2nd is still under construction. Below to it is he house of the 5th respondent. The main sewerage line is also visible in this photograph. The pleadings reveal that there is dispute between the petitioner and the 5th respondent with respect to the discharge of the rain and drain water of the house of the former, which according to the latter is flowing towards his house. The 5th respondent has made complaint also in this behalf to the Sub Divisional Magistrate, Sundernagar. Not only this, but the 3rd respondent issued a notice also under Section 133-D of the Code of Criminal Procedure to the petitioner to prevent the flow of the rain and drain water of his house towards the house of the 5th respondent and to restore normalcy. The repeated requests made by the petitioner vide representations Annexures P-11, P-12, P-15, P-18, P-20 & P-24 for sanction of sewerage connection in his favour, however, is still under consideration, as the 2nd and 4th respondents have failed to redress the same till date, hence the present petition. 4. This Court passed the following orders in this writ petition on the previous date:-“Notice dasti to the 4th and 5th respondents. There will be a direction to the petitioner and the th and 5th respondents to be present before this Court on the next date of hearing. Post on 24th September, 2012. A competent officer under the 2nd respondent shall also be present on that day.” 5. Consequently, the petitioner, Shri Mahinder Singh Thakur, Executive Officer, Municipal Council, Sundernagar, respondent No. 2, Shri Arun Sharma, Assistant Engineer, Irrigation and Public Health, Sub-Division, Sundernagar, respondent No. 4 and Shri Hans Ran, respondent No. 5 are present in person. The 4th respondent has placed on record the rough site plan of the house of the petitioner and the houses adjoining thereto and also letter No. Rip/12-1720-22 dated 07.09.2012 addressed to the 2nd respondent. 6. In view of the nature of the controversy and the parties present before us, while resorting to the provision contained under Section 89 of the Code of Civil Procedure, the matter was referred to Shri S.C. Sharma, a trained Mediator for trying conciliation. 6. In view of the nature of the controversy and the parties present before us, while resorting to the provision contained under Section 89 of the Code of Civil Procedure, the matter was referred to Shri S.C. Sharma, a trained Mediator for trying conciliation. Learned mediator and learned counsel representing the petitioner, 2nd respondent and also the 4th respondent have informed this Court that in view of the rough site plan mark ‘X’ placed on record by the th respondent, the house adjoining to that of the petitioner is of Shri Suresh Kumar and below that of Suresh Kumar is of Shri Rikhi Ram. Both S/Sh. Suresh Kumar and Rikhi Ram have already laid sewerage line connecting their houses with the main sewerage line laid by the 2nd respondent. The distance of the house of the petitioner from where the sewerage line can be connected with that laid by his neighbourer Suresh Kumar is hardly 4-5’ and the sewerage line of the petitioner can conveniently be linked with that laid by S/Shri Suresh Kumar and Rikhi Ram aforesaid and ultimately with main sewerage line, of course on payment of some reasonable compensation to aforesaid Suresh Kumar and Rikhi Ram who have laid the sewerage line from their respective houses up to the main whole at their own expense. 7. This has led us to examine as to whether said Shri Suresh Kumar and Sh. Rikhi Ram or for that matter any one else in the vicinity can be asked to provide space for laying sewerage line by the petitioner or not? In view of the provisions contained under Section 141 of the Himachal Pradesh Municipal Act, 1994, the answer to this poser would be in affirmative. This Section reads as follows: “14. The municipality may, at any time establish any connection or communication from any water-main, drain or sewer to any premises, or may by notice require the owner of any such premises to establish any such connection or communication in such manner and within such times as the municipality, by notice in that behalf, may prescribe, at the cost of such owner or occupier.” 8. Not only this, but a municipality is competent to execute any work required in the public interest, in the manner as provided under Section 137 of the Act ibid, which reads as follows:- “137. Not only this, but a municipality is competent to execute any work required in the public interest, in the manner as provided under Section 137 of the Act ibid, which reads as follows:- “137. The municipality may carry any cable, wire, pipe, drain, sewer or channel of any kind, for the purpose of establishing, telephonic or other similar communication or for carrying out and establishing or maintaining any system or lighting, drainage or sewerage, through, across, under all over any road, street, or place laid out as or intended for a road or street and after giving notice in writing to the owner or occupier, into, through, across under, overall or up the side of any land or building whatsoever situate within the limits of the municipal area, and, for the purpose of the introduction distribution of outfall of water or for the removal or outfall of sewerage without such limits, and may, at all limits do all acts and things which may be necessary or expedient for repairing or maintaining any such cable, wire, pipe, drain, sewer, or channel, as the case may be, in an effective state for the purpose for which the same may be used or intend to be used: Provided that such work shall be done so as to cause the least practical nuisance or inconvenience to any person: Provided further that reasonable compensation shall be paid to the owner of occupier for any damage at the time sustained by him and directly occasioned by the carrying out of any such operations.” 9. The Act empowers the Municipal Committee to lay pipes, drains or sewer through private land also, no doubt, on payment of reasonable compensation to the owner or occupier on account of any damage sustained by him while carrying out any such operations through his land/property. 10. Therefore, in the nature of the order we propose to pass in this writ petition, there is no need for us to go into merits of this case. There shall be a direction to the 2nd and the 4th respondents to invoke the provisions contained under Section 137 of the Act ibid and sanction a sewerage connection in favour of the petitioner, pursuant to the steps he already taken and requests made by way of several representations, including the latest one dated 25.8.2012 Annexure P-24 and thereafter, while associating the 4th respondent and also S/Sh. Suresh Kumar and Rikhi Ram, the immediate neighbours of the petitioner to consider his request for connecting the sewerage line of his house with the main sewerage line through the sewerage line already laid by S/Sh. Suresh Kumar and Rikhi Ram aforesaid at his own costs, no doubt on payment of reasonable compensation to S/Sh. Suresh Kumar and Rikhi Ram also, as mutually agreed upon by them within a month from the date of production of a copy of this judgment by the petitioner before the 2nd respondent. The rough site plan and letter No. Rip/12-1720-22 dated 07.09.2012 of the 4th respondent addressed to the 3rd respondents shall form part of the record of the writ petition. 11. Before parting with this judgment, we place on record our appreciation to the efforts made by Sh. S.C. Sharma, learned Mediator to settle the controversy between the parties amicably. 12. With the above observations, the writ petition stands disposed of, so also the pending application(s), if any.